371 F.3d 96 (2nd Cir. 2004), 03-7368, Westinghouse Credit Corp. v. D'Urso
|Docket Nº:||Docket Nos. 03-7368(L), 03-7374(CON).|
|Citation:||371 F.3d 96|
|Party Name:||WESTINGHOUSE CREDIT CORPORATION n/k/a CBS Corporation, Petitioner-Appellant, Westinghouse Electric Corporation, Bankruptcy-Movant-Appellant, v. Florence B. D'URSO, Trustee, as successor to Florence B. D'Urso, Executrix under the Last Will and Testament of Camillo Durso, deceased, Respondent-Appellee, Durso Supermarkets, Inc., Debtor, Chemical Bank,|
|Case Date:||June 08, 2004|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Dec. 3, 2003.
[Copyrighted Material Omitted]
John I. Karesh, New York, New York (John H. Eickemeyer, Dana H. Hoffman, Vedder, Price, Kaufman & Kammholz, P.C., New York, New York, of counsel), for Appellants.
Richard H. Dolan, New York, New York (Bennette D. Kramer, Schlam Stone & Dolan, LLP, New York, New York, of counsel), for Appellee.
Before: CARDAMONE, SACK, and JOHN R. GIBSON [*], Circuit Judges.
CARDAMONE, Circuit Judge.
This appeal concerns the calculation of interest. Crucial to its resolution in this case is fixing when the event takes place that separates pre-judgment from post-judgment time periods. The demarcation between the two periods occurs when a meaningful judgment is entered. The time when an event happens is important ordinarily because of the consequences that flow from it. When a meaningful judgment was entered has significance on this appeal for the same reason, i.e., because that is when post-judgment interest begins to run and pre-judgment interest ceases to apply. Unlike the time when a train departs its station or when the sun rises in the East--events that may be set out in a time-table or a schedule--the entry of a meaningful judgment requires a court to analyze the circumstances surrounding a judgment's entry in order to reach a legal conclusion supported by the evidence that establishes the time when such entry meaningfully occurs. We undertake that task in this opinion.
The appellants on this appeal--Westinghouse Credit Corporation and Westinghouse Electric Corporation--are now both part of Viacom, Inc. We refer to appellants collectively as Westinghouse. It appeals from an order of the United States District Court for the Southern District of New York (Stanton, J.) dated March 13, 2003. That order confirmed an arbitration award in Westinghouse's favor, but calculated interest on that award based on the statutory post-judgment interest rate, and applied that rate from the date of an earlier district court judgment that had been vacated on a prior appeal to this Court. Westinghouse contends the district court should have applied a higher interest rate during the period. Because we agree with this contention, we vacate the award and remand with instructions to the district court to amend its judgment so as to add to the award the correct amount of interest.
Most of the underlying facts are set out in detail on the earlier appeal in Westinghouse Credit Corp. v. D'Urso,
278 F.3d 138 (2d Cir.2002). For purposes of the present appeal, it is sufficient to recite the following: Florence B. D'Urso (Seller) sold all of the shares of Durso Supermarkets, Inc. (which owned 22 supermarkets) in 1989 for $44 million to T.F. Acquisition Corp. (Buyer). Id. at 141-42. Buyer obtained financing to make this purchase of Durso Supermarkets from Westinghouse, and paid the purchase price with a combination of cash and a note and mortgage. The contract covering this transaction called for post-closing adjustments to the purchase price, and part of the cash payment was placed in escrow to cover these adjustments. Id. The agreement further provided that disputes over post-closing price adjustments would be resolved through arbitration and directed that any resulting award was to be paid within ten days. Id.
In addition, the agreement contained specific provisions for interest calculations, the subject at the heart of this appeal, in the event that such an award was not paid on time. Section 2.04(c) of the agreement stated
If and in the event payment ... is not made on the due date, interest shall be added to the Amount Due, from the date payment was due to the date payment is made, at a rate computed by adding five percent (5%) per annum to the Prime Rate.
The parties agree that the prime rate specified under this section is a fixed yearly rate of 10.5 percent, and therefore the interest to be added to the amount due was 15.5 percent per year simple interest (5 percent plus 10.5 percent prime rate).
After the transaction closed, Ms. D'Urso as the Seller calculated the price adjustments and determined that the Buyer had paid her more than was owed under their contract. Accordingly, she returned to Buyer a check for $190,302.70. Id. at 143. Buyer contended that it was owed even more money for the closing adjustments. But Buyer had defaulted on payments owed Seller and had filed for bankruptcy before the closing adjustments dispute could be resolved. Because Westinghouse was Buyer's secured creditor, the bankruptcy court permitted it to prosecute Buyer's post-closing price adjustment claims on Buyer's behalf. Seller demanded that these claims be arbitrated, as called for in the contract, and she successfully moved the district court to withdraw the reference of this claim to the bankruptcy court and instead order arbitration. Id.
In 1998 following arbitration, the arbitrator awarded Westinghouse $2.3 million on the post-closing price adjustment claim it was prosecuting as a secured creditor of the Buyer. Id. at 144. In the meantime, Seller had obtained two judgments against Buyer based on other claims Ms. D'Urso had arising out of the sale of Durso Supermarkets. Id. at 143. Seller sought to use these two judgments as a recoupment or setoff to satisfy the arbitration award in favor of Westinghouse. Id. at 144. When Westinghouse petitioned the district court to confirm its arbitration award and to direct that the parties' escrow account be used to satisfy it, the district court confirmed the award, but agreed with Seller's setoff argument. It therefore directed the escrow agents to pay the entire escrow fund to Seller rather than to Buyer. Id. That decision, which formed the basis of a judgment dated June 2, 1999 was the subject of the previous...
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